Respect and Submission in Contexts of Transition: Reviewing Judicial Interpretation from R v Drybones to R v Montour

Authors

• Joshua Nichols, McGill, Faculty of LawFollow

Author ORCID Identifier

0009-0005-1482-788X

Keywords

United Nations Declaration on the Rights of Indigenous Peoples, Implementation legislation, Procedural implimentation, Judicial role, deference as respect, deference as submission, legal interpretation, constitutional reconciliation

Document Type

Article

Abstract

Since the Truth and Reconciliation Commission of Canada's call in 2015 for the adoption and implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), Canada has seen significant legislative developments. Notably, the Declaration of the Rights of Indigenous Peoples Act (DRIPA) in British Columbia, the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) at the federal level, and subsequent amendments to the Interpretation Act in British Columbia have introduced innovative frameworks for procedural implementation. However, these legislative actions pose unique challenges, particularly in their interpretation by the judiciary.

This paper navigates through the interpretive challenges posed by DRIPA and UNDRIPA, contextualizing them within the broader framework of Canadian law. While these acts do not give the UN Declaration direct force of law, they establish legal frameworks requiring governmental cooperation and consistency with Indigenous rights. The central question revolves around the judiciary's role in this process of procedural implementation: whether courts should have discretionary authority or be obligated to consider the UN Declaration in relevant matters.

Drawing upon the work of David Dyzenhaus as well as legal pragmatism and historical precedents, the paper argues against the discretionary construction of implementation legislation, advocating instead for a coherent legal approach that mandates judicial consideration of the UN Declaration where relevant. By examining the Supreme Court’s response to the Canadian Bill of Rights in R. v. Drybones, the British Columbia Supreme Court’s decision in Gitxaala v British Columbia (Chief Gold Commissioner), and the Quebec Superior Court in R. v. Montour, the paper provides an analysis of principles of legal interpretation that inform the current contrasting approaches to the interpretation of implementation legislation.

Through a principled understanding of the judiciary's role in procedural implementation, the paper concludes that courts must engage with the UN Declaration as part of Canada's ongoing process of constitutional reconciliation. It counters the argument that the UN Declaration is incompatible with Canadian constitutional law by illustrating how judicial interpretation can align with both the UN Declaration and existing constitutional frameworks. Ultimately, the paper offers guidance for the judiciary in navigating the complexities of implementing Indigenous rights legislation, emphasizing the importance of consistency and principled legal interpretation in achieving reconciliation.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Nichols, Joshua. "Respect and Submission in Contexts of Transition: Reviewing Judicial Interpretation from R v Drybones to R v Montour." Osgoode Hall Law Journal 62.2 (2026) : 619-670.
DOI: https://doi.org/10.60082/2817-5069.3956
https://digitalcommons.osgoode.yorku.ca/ohlj/vol62/iss2/7

References

1. Associate Professor in the Faculty of Law at McGill University. I am grateful to Professors Amy Swiffen, Robert Hamilton, and Aaron Mills for their friendship, encouragement, and thoughtful feedback on earlier drafts of this article. I also extend my thanks to Benjamin Foster for his valuable assistance in the editorial process. Any errors remain my own.

2. Benjamin N Cardozo, The Growth of Law (Yale University Press, 1924) at 19-20.

3. Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Truth and Reconciliation Commission of Canada, 2015) at 325.

4. SBC 2019, c 44 [DRIPA].

5. SC 2021, c 14 [UNDRIPA].

6. RSBC 1996, c 238, s 8.1(3) [BCIA].

7. There is now implementation legislation in the Northwest Territories. See United Nations Declaration on the Rights of Indigenous Peoples Implementation Act, SNWT 2023, c 36. Interestingly, this legislation takes a different approach to interpretation, as s 2 requires that the legislation be interpreted in a manner that is consistent with s 35 of the Constitution Act, 1982. See Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. It is unclear what effect (if any) this will have on the judicial interpretation. Also, implementation legislation was proposed in Ontario, but it did not progress beyond the first reading. See Bill 76, An Act to ensure that the laws of Ontario are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st Sess, 42nd Leg, Ontario, 2019 (first reading 6 March 2019).

8. See Kerry Wilkins, “So you want to implement UNDRIP…” (2021) 53 UBC L Rev 1237; Nigel Bankes, “Implementing UNDRIP: An Analysis of British Columbia’s Declaration on the Rights of Indigenous Peoples Act” (2021) 53 UBC L Rev 971 [Bankes, “Implementing UNDRIP”].

9. My use of the term “procedural implementation” is related to Professor Naiomi S Walqwan Metallic’s concept of “legislative reconciliation,” which she defines as the enactment of legislation “to respect, promote, protect, and accommodate inherent rights through mechanisms or frameworks elaborated upon within the statute.” See “Aboriginal Rights, Legislative Reconciliation, and Constitutionalism” (2023) 27 Rev Const Stud 1 at 5. The difference between the terms is that I use “procedural implementation” to refer to a specific type of legislative reconciliation (e.g., implementation legislation that operates by affirming rights through general legal interpretation). Professor Metallic’s term helpfully captures all uses of legislative authority to further the goal of reconciliation. The Court used the concept of “legislative reconciliation.” See Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at paras 6, 17 [C-92 Reference SCC].

10. The federal and provincial acts effectively use the same language regarding the measures that will be used to align existing laws with the UN Declaration. See UNDRIPA, supra note 5, s 5; DRIPA, supra note 4, s 3.

11. The interpretive question hinges on the relationship between the purposes and measures sections of implementation legislation. Regarding purposes, both acts affirm the application of the UN Declaration to domestic law. See UNDRIPA, supra note 5, s 4(a); DRIPA, supra note 4, s 2(a). Regarding measures, both require government to “take all measures necessary” to ensure that domestic law is consistent with the UN Declaration. See UNDRIPA, supra note 5, s 5; DRIPA, supra note 4, s 3. Judges who adopt the political construction hold that the sole responsibility of the judiciary is to review government obligations relating to measures.

12. Professor Bankes takes this view in his survey of the British Columbia legislation. See “Implementing UNDRIP,” supra note 8 at 998.

13. Oliver Wendell Holmes Jr, in his magisterial book, maintained that “[t]he life of the law has not been logic: it has been experience.” See The Common Law (Little, Brown & Co, 1881; reprint Belknap Press, 2005) at 6, DOI: . This is rightly understood as a starting point for a pragmatic approach to legal theory. However, to properly appreciate what Holmes has in mind, we need to avoid a reductive and psychological understanding of the term “experience.” If we treat “experience” as nothing more than the sense experience of the individual, we quickly arrive at a well-worn caricature of legal scepticism, which positions Holmes as saying little more than law is “what the judge had for breakfast.” For an informative history of this saying, see Dan Priel, “Law Is What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea” (2020) 68 Buff L Rev 899. For Holmes—much like Peirce, James, and Dewey—the concept of “experience” is social and historical. See generally Catherine Legg & Christopher Hookway, “Pragmatism” in Edward N Zalta et al, eds, The Stanford Encyclopedia of Philosophy (Stanford University, 2024), DOI: . Or, to borrow Hilary Putnam’s helpful terminology, they adopt a form of semantic externalism. See generally “The Meaning of ‘Meaning’” in Keith Gunderson, ed, Language, Mind and Knowledge (University of Minnesota Press, 1975) at 131. We get a clearer sense of what the life of the law is for Holmes once we read beyond his oft quoted maxim and understand that “[i]n order to know what [law] is, we must know what it has been, and what it tends to become.” See supra note 13 at 5.

14. Given my focus on the constitutional responsibilities of the judiciary in relation to legal equality, I draw extensively from the work of Professor David Dyzenhaus, whose work serves as a model for my own. See Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Hart, 1998), DOI: [Dyzenhaus, Judging the Judges].

15. Some may be tempted to make a categorical distinction between the familiar set of rights and freedoms recognized in common law and the rights of Indigenous peoples. This was the position that Chief Justice Lamer took when he claimed that Aboriginal rights cannot be “defined on the basis of the philosophical precepts of the liberal enlightenment.” See R v Van der Peet, 1996 CanLII 216 at para 19 (SCC) [Van Der Peet]. But this claim is mistaken. While it is obvious that when we are concerned with the constitutional traditions of Indigenous peoples, we can only understand them by taking them seriously on their own terms (see Aaron Mills, “The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today” (2016) 61 McGill LJ 847 [Mills, “Lifeworlds”]; see also Aaron Mills, Miinigowiziwin: All That Has Been Given for Living Well Together – One Vision of Anishinaabe Constitutionalism (PhD Dissertation, University of Victoria, 2019) [unpublished] [Mills, Miinigowiziwin]), the rights that we find expressed in section 35 of the Constitution Act, 1982 and UN Declaration are based upon the inherent right to self-government. Thus, rightly understood, both the familiar set of civil and political rights and the rights of Indigenous peoples share a common foundation that is necessarily intelligible to those working in the philosophical traditions of the liberal enlightenment, as both are expressions of the inherent right of self-government. As Professor Noel Lyon put it:

Aboriginal peoples have their own ways of securing fundamental freedoms and democratic rights that come from long experience of self-government. We may not understand or agree with all those ways, but if the consent of others is the condition of legitimacy, then the fundamental right of self-determination is gone and section 35 becomes a new entrenched Indian Act.

“An Essay on Constitutional Interpretation” (1988) 26 Osgoode Hall LJ 95 at 106, DOI: . The differences between civil and Indigenous rights reflect the different modes of expression that the right of self-government takes in relation to their respective historical and constitutional contexts (e.g., the struggle for self-government by individuals within their constitutional order against governmental absolutism versus the struggle for self-government by peoples against foreign imperial powers). I provide a more detailed response to this mistaken claim of categorical difference in this article.

16. SC 1960, c 44.

17. Parliament can use its legislative authority to place formal or procedural requirements (e.g., “manner and form” conditions) that must be met before a statute can be considered enforceable. While there has been a long standing debate about the compatibility of manner and form legislation with English parliamentary sovereignty, this debate does not apply to Canada. For a helpful consideration of the debate concerning English parliamentary sovereignty, see Han-Ru Zhou, “Revisiting the ‘Manner and Form’ Theory of Parliamentary Sovereignty” (2013) 129 Law Q Rev 610. Parliamentary sovereignty in Canada has always been limited by the British North America Act, 1867, which includes manner and form requirements. See e.g. 30 & 31 Vict, c 3, s 91(1) (placing specific time limits and renewal conditions). As J Gant Sinclair explains:

That Parliament has only a limited sovereignty should not be a difficult proposition to accept. For the preamble to the British North America Act, as well as stating a desire to have “a constitution similar in principle to that of the United Kingdom”, also states the desire to be “federally united”. Federalism necessarily implies the supremacy of the constitution not the supremacy of Parliament. Although the phrase, limited sovereignty, appears to be a contradiction, what is meant is that the Parliament of Canada is supreme within its own sphere. So long as it conforms to the fundamental law, it has the power to make any law whatever, including a law which imposes limitations upon its own powers. Such a law would in no way offend Dicey’s principle of legislative supremacy which assumes a Parliament possessed of unlimited powers. Thus, there is no reason why, until expressly repealed or amended, the Canadian Bill of Rights should not prevail over any inconsistent, federal legislation which does not contain the notwithstanding clause.

“The Queen v. Drybones: The Supreme Court of Canada and The Canadian Bill of Rights” (1970) 8 Osgoode Hall LJ 599 at 604, DOI: . Also, J Noel Lyon discusses the tendency of the Canadian judiciary to adopt the English doctrine of parliamentary supremacy despite the constitutional limitations imposed by the British North America Act, 1867. See “The Central Fallacy of Canadian Constitutional Law” (1976) 22 McGill LJ 40 [Lyon, “Central Fallacy”]. Finally, Mark D Walters provides a compelling account of alternatives to Dicey’s understanding of parliamentary sovereignty. See “St. German on Reason and Parliamentary Sovereignty” (2003) 62 Cambridge LJ 335, DOI: .

18. 1969 CanLII 1 (SCC) [Drybones].

19. See also Hogan v R, 1974 CanLII 185 at 597-98 (SCC). Justice Laskin states:

The Canadian Bill of Rights is a half-way house between a purely common law regime and a constitutional one; it may aptly be described as a quasi-constitutional instrument. It does not embody any sanctions for the enforcement of its terms, but it must be the function of the Courts to provide them in the light of the judicial view of the impact of that enactment.

For a helpful theoretical engagement with the use of quasi-constitutional legislation in Canada, see Vanessa MacDonnell, “A Theory of Quasi-Constitutional Legislation” (2016) 53 Osgoode Hall LJ 508, DOI: .

20. 2023 BCSC 1680 [Gitxaala].

21. 2023 QCCS 4154 [Montour].

22. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

23. Hunter et al v Southam Inc, 1984 CanLII 33 at 155 (SCC) [Southam].

24. Ibid at 169 [emphasis added].

25. Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 at para 451 [C-92 Reference QCCA].

26. Supra note 9 at para 80.

27. As the Court rightly noted, this pedagogical function can be invaluable in the larger process of reconciliation, especially as it relates to the question of the right of self-government. In the Court’s words: “In areas where Parliament cannot order, direct or command institutions to adopt its position, this pedagogical function may nevertheless, in time, help to inculcate new attitudes or approaches that will further promote a culture of respect for and reconciliation with Indigenous peoples in Canada.” See C-92 Reference SCC, supra note 9 at para 81.

28. Southam, supra note 23 at 152.

29. See Drybones, supra note 18.

30. See Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

31. Eric M Adams, “Judicial Agency and Anxiety under the Canadian Bill of Rights: A Constitutional History of R v Drybones” (2018) 39 NJCL 63 at 84.

32. The Honourable Brian Dickson J, “The Public Responsibilities of Lawyers” (1983) 13 Man LJ 177 at 185.

33. “The Nature and Problems of a Bill of Rights” (1959) 37 Can Bar Rev 4 at 4-5. Ivan C Rand provides a detailed assessment of the Canadian Bill of Rights in the immediate wake of its passage. See “Except by Due Process of Law” (1961) 2 Osgoode Hall LJ 171, DOI: .

34. See Lederman, supra note 33 at 5.

35. Ibid at 4.

36. Ibid at 10-11.

37. For a detailed analysis of the Court’s attachment to parliamentary supremacy and the problems it poses, see Lyon, “Central Fallacy,” supra note 17; Paul Cavalluzzo, “Judicial Review and the Bill of Rights: Drybones and Its Aftermath” (1971) 9 Osgoode Hall LJ 511, DOI: ; LH Leigh “The Indian Act, the Supremacy of Parliament, and the Equal Protection of the Laws” (1970) 16 McGill LJ 389. Similarly, J Grant Sinclair argued that the predominant legal philosophy among the Canadian judiciary is a narrow and mechanical variety of positivism. See supra note 17 at 608.

38. “Central Fallacy,” supra note 17 at 44.

39. Sinclair, supra note 17 at 601. Prime Minister Diefenbaker attended the Commonwealth Prime Ministers’ Conference held in London in March 1961, and he refused to support South Africa’s continued membership unless they were willing to formally repudiate apartheid. This was significant for several reasons, including the fact that Canada broke ranks with Britain, Australia, and New Zealand (who all supported continued membership despite the apartheid policy) and joined with India, Ghana, Ceylon (Sri Lanka), and many other African and Asian members to oppose apartheid. As Prime Minister Diefenbaker put it on his return to Canada:

As far as we are considered in Canada, to the people of South Africa I say this, that we were carrying out internationally, within the commonwealth, the polices which we had adopted for Canada and represented our viewpoint in Canada culminating in the Bill of Rights. For South Africa’s severance from the commonwealth, self-imposed exile though it be, we can have but genuine regret. Assuaged by faith that from all this, truly a watershed of history, justice and right will emerge in the end.

CBC, “John Diefenbaker Stares Down South Africa in 1961” (17 March 1961) at 00h:01m:34s, online (video): [perma.cc/V8SB-D8D9]. See also Frank Hayes, “South Africa’s Departure from the Commonwealth, 1960-1961” (1980) 2 Intl History Rev 453, DOI: .

40. Supra note 17 at 607.

41. Ibid at 601 [emphasis in original].

42. RSC 1952, c 149.

43. See WS Tarnopolsky, “The Supreme Court and Civil Liberties” (1976) 14 Alta L Rev 58 at 84-85, DOI: .

44. Cavalluzzo, supra note 37 at 511.

45. David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed, The Province of Administrative Law (Hart, 1997) 279 at 286, DOI: [Dyzenhaus, “Politics of Deference”].

46. Drybones, supra note 18 at para 293.

47. The use of the term “senseless” is descriptive, not pejorative. I am using Frege’s distinction between sense and reference. See Gottlob Frege, “On Sense and Reference” in AW Moore, ed, Meaning and Reference (Oxford University Press, 1993) 23 at 24-25. Pigeon J argues that “[t]he meaning of such expressions as ‘due process of law’, ‘equality before the law’, ‘freedom of religion’, ‘freedom of speech’, is in truth largely unlimited and undefined.” Drybones supra note 18 at 306. He then claims that the only possible meaning of these terms is that provided by Parliament. This allows him to claim that the term “equality before the law” refers to the existing legislation that defines the law that is applicable to the context. But this approach confines the meaning of “equality before the law” to what it refers to within existing Canadian law. According to Frege, the sense of a term is what it is used to express. See supra note 47 at 27. Thus, while different names can have the same referent (e.g., the morning star and the evening star), they have different senses. To claim that we can strictly confine the meaning of open-textured expressions like “equality before the law” or “due process of law” to what they refer to in existing legislation is to render these expressions senseless. Likewise, this account necessarily implies that the nature of parliamentary authority is not limited to the ordinary meanings of terms. This “law without sense” model of parliamentary authority strains the limits of legal validity. To meet the standard of “prescribed by law,” the legislation needs to be able to provide “binding rules of general application…[that] are sufficiently accessible and precise to those to whom they apply.” Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 at para 53. In other words, the conditions of formal legality preclude legislation that is “so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools.” Osborne v Canada (Treasury Board), 1991 CanLII 60 at 94 (SCC). The notion that “equality before the law” in Canada is consistent with the Indian Act necessarily implies that Parliament has the authority to legislatively determine the conditions of legal equality on a group-by-group basis. This approach is “senseless,” as it deprives those subject to this legislation of the ability to contest the meaning of “equality before the law.” This effectively replaces the legislative sovereignty of Parliament with Humpty-Dumpty’s claim that words mean what he says they mean and nothing else. See Lewis Carroll, “Through the Looking-Glass, and What Alice Found There” in The Complete Works of Lewis Carroll (Vintage Books, 1976) 208 at 214. For a similar argument against the generality concern, see Lyon, “Central Fallacy,” supra note 17 at 57.

48. Drybones, supra note 18 at 286. This argument is particularly interesting as it required Cartwright CJ to reverse the position he took in his dissent in a prior decision. See Robertson and Rosetanni v R, 1963 CanLII 17 (SCC), Cartwright CJ, dissenting. For a helpful analysis of this reversal and the case generally, see Sinclair, supra note 17 at 606; JN Lyon, “Drybones and Stare Decisis” (1971) 17 McGill LJ 594 [Lyon, “Drybones and Stare Decisis”].

49. Drybones, supra note 18 at 283-84.

50. Ibid at 288.

51. Ibid at 284.

52. Ibid at 294.

53. Ibid at 299.

54. Ibid.

55. Ibid.

56. Ibid at 294 [emphasis in original].

57. For a helpful commentary on the distinction between legislation and judge-made law, see Brian Dickson, “The Judiciary – Law Interpreters or Law-Makers” (1982-1983) 12 Man LJ 1.

58. See Drybones, supra note 18 at 285. Justice Abbott is silent on the question of whether the legislation in question is in conflict. Ibid at 299.

59. I take the term “legal nonsense” from Felix Cohen’s classic essay. See “Transcendental Nonsense and the Functional Approach” (1935) 35 Colum L Rev 173 at 182, DOI: .

60. 1962 CanLII 348 (BCCA) [Gonzales]. In Gonzales, it was only Davey J that was willing to admit that there could be a conflict between s 94(b) of the Indian Act and the Canadian Bill of Rights (ibid at 292).

61. Drybones, supra note 18 at 304.

62. Ibid at 305.

63. Ibid.

64. Ibid.

65. Ibid at 303. Justice Pigeon cites the 1917 decision of the Court of Appeal for Ontario. See R v Martin, 1917 CanLII 1094 (ONCA) [Martin]. This decision, in turn, cites another 1899 decision of the Privy Council. Ibid at 346, citing Canadian Pacific RW Co v Corporation of the Parish of Notre Dame de Bonsecours, [1899] UKPC 22 at 367, 372-73 [Canadian Pacific]. The point of both is that the nature of exclusive federal authority does not cover the entirety of those who have Indian status—as they are also citizens of provinces and thus bound by provincial laws—but only that portion of them that can be said to be their Indianness.

66. Drybones, supra note 18 at 306. This argument received a significant amount of critical commentary from legal scholars at the time. For example, Professor Lyon argues that

[i]t is simply not good enough for judges to say that section 1 of the Canadian Bill of Rights is expressed in vague and general language, and they are accustomed to dealing with more specific formulations. The Canadian Bill of Rights was enacted by Parliament for an important purpose, and for lawyers and judges to decline to accept the responsibility because the Bill is not sufficiently technical to suit their taste is to thwart the will of Parliament. The irony is that many who take this view claim to be observing the doctrine of parliamentary supremacy.

“Drybones and Stare Decisis,” supra note 48 at 597. See also LH Leigh, “The Indian Act, the Supremacy of Parliament, and the Equal Protection of the Laws” (1970) 16 McGill LJ 389 at 392-93; Cavalluzzo, supra note 37 at 541-42.

67. This citation is taken from Justice McIntyre’s definition of discrimination in his partial dissent from Andrews v Law Society of British Columbia, 1989 CanLII 2 at 174 (SCC). Justice McIntyre’s decision in this case is illuminating as it provides a clear and forceful rejection of the so-called similarly situated test and specifically uses the majority decision in Drybones as authority for the rejection of this reclothed version of “separate but equal” (ibid at 167).

68. Drybones, supra note 18 at 284.

69. Ibid at 302, 306.

70. Drybones, supra note 18 at 303.

71. David Dyzenhaus, The Long Arc of Legality: Hobbes, Kelsen, Hart (Cambridge University Press, 2022) at 2, DOI: [Dyzenhaus, Long Arc].

72. This is, after all, the root of Lilburne’s famous question: “It is desired that our learned lawyers would answer these ensuing queries…whether ever the Commonwealth, when they chose the Parliament, gave them a lawless unlimited power, and at their pleasure to walk contrary to their own laws and ordinances before they have repealed them?” Lon L Fuller, The Morality of Law, revised ed (Yale University Press, 1964) at 33, DOI: .

73. C-92 Reference QCCA, supra note 25 at para 466 [emphasis in original].

74. Fuller, supra note 72 at 33.

75. Daniels v Canada (Indian Affairs and Northern Development), 2013 FC 6 at para 353. Abella J cites the trial judge’s findings of fact. Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 at paras 4-8. These findings are based upon expert witness testimony concerning the use of s 91(24). For a compelling analysis, see Larry Chartrand, “The Failure of the Daniels Case: Blindly Entrenching a Colonial Legacy” (2013) 50 Alta L Rev 181, DOI: .

76. See Natural Parents v Superintendent of Child Welfare et al, 1975 CanLII 143 at 761 (SCC). The term “Indianness” is introduced into the case law. The Court uses this term to describe the limit of provincial jurisdiction over “Indians” off reserve and they cite two earlier cases. Ibid, citing R v Hill, 1907 CanLII 333 (ONCA) [Hill]; Martin, supra note 65. If we look at Riddell J’s decision in Martin, we see that he also cites Hill as binding authority (see ibid at 346). Riddell J adopts the language used by the Judicial Privy Council in Canadian Pacific, which states, “The British North America Act […] gives the legislative control of the Indian defendant qua Indian to the Parliament of the Dominion” (ibid at 346-47). What this shows is that the basis of the term “Indianness” in the case law is the claim that Parliament has legislative power over “Indians qua Indians” (i.e., a legislative power over a racial category that Parliament was largely free to define). The Court in the C-92 Reference SCC is undoubtedly aware of this history of the interpretation of s 91(24)—their awareness is reflected in their very limited use of the case law—and by redefining “Indianness” as “Indigenous peoples as Indigenous peoples,” they have rejected the notion of a broad legislative power over a racial category. Supra note 9 at para 2.

77. C-92 Reference SCC, supra note 9 at para 94.

78. As Professor Chartrand maintains, s 91(24) provides the federal government with a “treaty power” that is “broad in its application to various Indigenous peoples (so none are excluded), but non-existent as to its capacity to allow unilateral action.” Supra note 75 at 188.

79. Cohen, supra note 59 at 189.

80. Drybones, supra note 18 at 305.

81. Ibid.

82. Ibid.

83. Ibid at 307.

84. The category of general question of law—also referred to as “constitutional questions”—is used in Canadian administrative law to determine the appropriate standard of review. In effect, the reasonableness standard—and the jurisdiction of administrative tribunals—ends when the matter concerns questions of general law of “central importance to the legal system as a whole,” because “such questions require uniform and consistent answers.” See Dunsmuir v New Brunswick, 2008 SCC 9 at para 60.

85. The move from picture theories of the Constitution to a practice-based understanding of constitutionalism resonates with Professor Dyzenhaus’s account of legal authority. He maintains that legal authority is based upon the ability of legal officials to give reasonable justifications to legal subjects who ask: “But, how can this be law for me?” Dyzenhaus, Long Arc, supra note 71 at 3. This requires those who are tasked with interpreting the law to be able to distinguish between those laws that can meet this challenge and those that cannot. What he refers to as a “constitutionalist idea” combines this understanding of legal authority and the practice of legal interpretation to understand a constitution as “an ongoing practice which constitutes legal authority” (ibid).

86. Drybones, supra note 18 at 293.

87. By “constitutional imaginary,” I simply mean how they understand their role as judges and the nature of the rule of law. I draw some inspiration from Benedict Anderson’s notion of imagined communities. See generally Imagined Communities: Reflections on the Origin and Spread of Nationalism, revised ed (Verso, 2006).

88. Supra note 18 at 304.

89. Ibid at 286.

90. Ibid at 288.

91. Ibid at 299.

92. Ibid at 304.

93. On this point, see Lyon, “Central Fallacy,” supra note 17 at 40; Sinclair, supra note 17 at 617-18.

94. Fuller, supra note 72.

95. See RSBC 1996, c 292.

96. Supra note 4, s 2.

97. Supra note 6, ss 8.1(2)-(3).

98. Supra note 20 at para 464, citing DRIPA, supra note 4, s 2(b).

99. Gitxaala, supra note 20 at para 470. For a more detailed analysis of this case, please refer to Professor Nigel Bankes’s blog article, “The Legal Status of UNDRIP in British Columbia: Gitxaala v British Columbia (Chief Gold Commissioner)” (5 October 2023), online (blog): [perma.cc/8GP4-6DB5].

100. Section 4 of UNDRIPA provides that “[t]he purposes of this Act are to (a) affirm the Declaration as a universal international human rights instrument with application in Canadian law; and (b) provide a framework for the Government of Canada’s implementation of the Declaration.” Supra note 5.

101. Gitxaala, supra note 20 at para 470.

102. See e.g. Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 94.

103. BCIA, supra note 6, ss 8.1(2), 8.1(3).

104. DRIPA, supra note 4, s 3.

105. Gitxaala, supra note 20 at para 488.

106. For the modern approach to statutory interpretation, see Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 at para 21 (SCC).

107. Supra note 20 at para 490.

108. Ibid at para 485.

109. Ibid at para 489.

110. Ibid at para 490.

111. Ibid at paras 490-91. This is “potentially justiciable” because the parties in this case agreed that it was not in question in this case.

112. SC 2002, c 22.

113. Montour, supra note 21 at para 1199.

114. Ibid at para 1201.

115. Ibid at para 1164. The Attorney General’s argument is summarized by Bourque J.

116. Ibid at para 1199.

117. As Bourque J notes, the Preamble of UNDRIPA explicitly states that “the Declaration is affirmed as a source for the interpretation of Canadian law.” Ibid at para 1195, citing UNDRIPA, supra note 5, preamble [emphasis in original].

118. Montour, supra note 21 at para 1205.

119. Bourque J deals with the issue of vertical stare decisis at length (ibid at paras 1143-56). Bourque J also summarizes the trial judge’s reasoning in Carter v Canada (Attorney General): “The trial judge ‘concluded that these changes in the law, combined with the changes in the social and factual landscape over the past 20 years, permitted her to reconsider the constitutionality on the prohibition on physician-assisted dying.’” Ibid at para 1151, citing Carter v Canada (Attorney General), 2015 SCC 5 at para 28 [Carter] [emphasis added]. Additionally, Bourque J clarifies that “trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that ‘fundamentally shifts the parameters of the debate.’” Montour, supra note 21 at 1153, citing Carter at para 44. The significant point here is that she specifically delineates the limited circumstances under which lower courts may depart from binding precedent, which she uses to support her argument for overturning Van der Peet, supra note 15.

120. Montour, supra note 21 at para 1216.

121. Ibid at para 1316 [emphasis in original].

122. Van der Peet, supra note 15 at para 69.

123. Ibid at paras 260 [emphasis in original].

124. Ibid at para 157.

125. The QCCA provided an exhaustive overview of the state of Canadian law on the question of self-government both prior to and following Van der Peet. See C-92 Reference QCCA, supra note 25 at paras 385-435.

126. Montour, supra note 21 at paras 1309-11.

127. See Van der Peet, supra note 15 at paras 44, 46.

128. Montour, supra note 21 at para 1297 [emphasis in original].

129. Ibid at para 1235, citing John Borrows, “Revitalizing Canada’s Indigenous Constitution: Two Challenges” in Borrows et al, eds, Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Centre for International Governance Innovation, 2019) 29 at 37, DOI: .

130. See Edwards v Canada (Attorney General), 1929 CanLII 438 at 106-107 (UKJCPC). For an illuminating comparative analysis of “living tree” and originalist approaches in Canadian Aboriginal law, see John Borrows, “(Ab)Originalism and Canada’s Constitution” (2012) 58 SCLR 351, DOI: .

131. Southam, supra note 23 at 155.

132. Dyzenhaus, Judging Judges, supra note 14 at 16.

133. Ibid.

134. Dyzenhaus, Long Arc, supra note 71 at 3.

135. Ibid at 30-31.

136. Ibid at 31.

137. For more on the concepts of “culture of justification” and “culture of authority,” see Etienne Mureinik, “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10 SAJHR 31, DOI: . See also David Dyzenhaus, “Law as Justification: Etienne Mureinik’s Conception of Legal Culture” (1998) 14 SAJHR 11, DOI: .

138. See Drybones, supra note 18 at 299-300, citing Gonzales, supra note 60.

139. Drybones, supra note 18 at 300.

140. Ibid at 298.

141. See Dyzenhaus, Judging the Judges, supra note 14 at 166.

142. Ibid at 167.

143. Dyzenhaus, Long Arc, supra note 71 at 30, 32.

144. In 1969, the Government of Canada issued the Statement of the Government of Canada on Indian Policy (“White Paper”), which proposed to remove the legislative and constitutional basis for discrimination and thereby promote legal equality. See Department of Indian Affairs and Northern Development, Statement of the Government of Canada on Indian policy, 1969 (Indian and Northern Affairs Canada, 1969). As Sally M Weaver explains, “[a]lthough the policy-makers struggled to produce a ‘good’ policy, the White Paper was basically a self-serving policy designed to free the government from criticism, protecting it from future accusations of discrimination.” Making Canadian Indian Policy: The Hidden Agenda 1968–1970 (University of Toronto Press, 1981) at 197, DOI: . Under the leadership of Harold Cardinal, the Indian Association of Alberta responded to the White Paper with Citizens Plus (it takes its title from a term used in the Hawthorn Report and it is also known as the Red Paper), which argued for the retention of the Indian Act as a means of protecting their lands. See Indian Association of Alberta, Citizens Plus (Indian Association of Alberta, 1970), reprinted in “Foundational Document – Citizen Plus” (2011) 1 Aboriginal Pol’y Studies 188, DOI: . For a constitutional and historical analysis, see Joshua Ben David Nichols, A Reconciliation Without Recollection? An Investigation of the Foundations of Aboriginal Law in Canada (University of Toronto Press, 2020), DOI: .

145. Dyzenhaus, Long Arc, supra note 71 at 25.

146. Ibid.

147. Southam, supra note 23 at 169 [emphasis added].

148. Ibid at 155.

149. UNDRIPA, supra note 5, s 4(a).

150. BCIA, supra note 6, s 8.1(3).

151. Supra note 15 at para 19.

152. In the recent C-92 Reference SCC, the SCC maintained that s 35 remains open to the possibility of the right of self-government and that “rights of self-government, insofar as they exist, ‘cannot be framed in excessively general terms’ and cannot extend to a matter — for example, the regulation of gambling — that is not an integral part of the distinctive culture of the First Nations in question.” Supra note 9 at para 112. These propositions cannot both be maintained. The Van der Peet test conflates the right with the preferred means of exercising it (namely, it is functionally defective). It is predicated on the presumption that “aboriginal rights” are categorically distinct from rights. That is to say, it shares the same flaws as the notion of “separate but equal,” but makes it harder to detect as it shifts from the application of legal concepts to the interpretation of them. Those who find themselves sceptical about this claim may find some clarity by asking themselves how one could go about proving that the right of self-government was integral (but not incidental) to their distinctive (but not distinct) culture prior to contact with Europeans? This exercise is necessarily paradoxical as it requires us to imagine human cultures that had no right to self-government. Unless we want to slip into legalistic metaphysics that allow you to categorize some human beings as having lesser rights than others (e.g., natural slavery and savages), then we must hold that the right to self-government is a general and universal presupposition. This is, after all, why the US Declaration of Independence holds the proposition of universal human equality and the right to life, liberty, and the pursuit of happiness to be both self-evident and inalienable. See US, Declaration of Independence, 4 July 1776, 1 Stat 1. It is this general and universal understanding of rights that distinguishes the version of s 35 rights that amounts to little more than “a catalogue of individualized practices, traditions or customs” from the one that correctly insists that the purpose of these rights is to protect “the ‘distinctive culture’ of which Aboriginal activities are manifestations.” See Van der Peet, supra note 15 at para 157, L’Heureux-Dubé J, dissenting. Regarding the arguments for a generic (or inherent) right of self-government that would not need to be proven under the Van der Peet test, see generally C-92 Reference QCCA, supra note 25. It may well be that the current SCC is aware of these fatal flaws and feels it best to not make such a significant change in the law in the context of a reference case. See C-92 Reference SCC, supra note 9 at paras 111, 117.

153. TRS Allen, The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford University Press, 2013) at 129, DOI: .

154. I am using Professor Aaron Mills’s concept of legalities, which, roughly speaking, refers to the practices of legal reasoning that constitute a living legal order. See Mills, “Lifeworlds,” supra note 15. See also Mills, Miinigowiziwin, supra note 15. For Professor Aaron Mills’s repudiation of the notion of incommensurable discourses (or incommensurability as uninterpretability), see “First Nations’ Citizenship and Kinship Compared: Belonging’s Stake in Legality” (2024) 72 Am J Comp L 892, DOI: .

155. Van der Peet, supra note 15 at para 19.

156. Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press, 2009) at 213, DOI: .

157. There are still judges who find themselves unable to meaningfully respond to challenges to the legitimacy of Crown sovereignty. See e.g. Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15. Justice Kent acknowledges the “legal frailties underlying the Crown’s assertion of sovereignty” but directs our attention to the “harsh realities” that the existing “system of law and government…[is] firmly and intractably entrenched,” and the “doctrine of precedent…requires [the courts] to apply the law…subject only to incremental changes not prohibited by precedent or legislative change” (ibid at paras 201-204). In Montour, Bourque J addresses the problem of vertical stare decisis at length. See Montour, supra note 21 at paras 1143-56. As the SCC explained, “stare decisis is not a straitjacket that condemns the law to stasis.” Carter, supra note 119 at para 44. For recent commentary that touches on the reasoning of Justice Kent, see Joshua Nichols & Amy Swiffen, “Undoing the Colonial Double-Bind: Interpretation and Justification in Aboriginal Law” (2023) 27 Rev Const Stud 41 at 45-46.

158. For commentary on the doctrine of sovereign incompatibility, see Gordon Christie, “The Court’s Exercise of Plenary Power: Rewriting the Two-Row Wampum” (2002) 16 SCLR 285, DOI: ; Kent McNeil & Kerry Wilkins, “Welcome Home: Aboriginal Rights Law after Desautel” (2022) 59 Osgoode Hall LJ 553, DOI: ; Joshua Nichols, “A Reconciliation without Recollection – Chief Mountain and the Sources of Sovereignty” (2015) 48 UBC L Rev 515; Nichols & Swiffen, supra note 157.

159. I am using the helpful labels of old and new rules from Professor Noel Lyon’s classic essay. See “An Essay on Constitutional Interpretation” (1988) 26 Osgoode Hall LJ 95, DOI: . This article was cited by the SCC. See R v Sparrow, 1990 CanLII 104 at 1105-1106 (SCC). Also, as the QCCA recently stated, “the historical relationship between the Crown and Aboriginal peoples, both before and after the Constitution Act, 1867, establishes that Aboriginal peoples have always been recognized as peoples—and not merely as subjects.” C-92 Reference QCCA, supra note 25 at para 466. The QCCA is also careful to note that the right of self-government cannot be understood as being subject to the Van der Peet test, because that test is used to determine if a given cultural practice was inherent to the claimant’s distinctive culture prior to contact. The right of self-government cannot be understood in this manner, as to do so would necessarily entertain conceptual absurdities (e.g., lawless peoples). Thus, the right of self-government needs to be understood as a “general” or “generic” right. See C-92 Reference QCCA, supra note 25 at paras 59, 220; Montour, supra note 21 at paras 1309, 1328.

160. C-92 Reference SCC, supra note 9 at para 15.